Supreme Court New South Wales Medium Neutral Citation: R v Martinez & Tortell [2017] NSWSC 1659 Hearing dates: 24 July 2017;11 August 2017 Date of orders: 12 December 2017 Decision date: 12 December 2017 Jurisdiction: Common Law - Criminal Before: Mathews AJ Decision: Martinez: (accumulating two offences) NPP 15 years 9 months – balance 6 years Tortell: NPP 16 years – balance 6 years Catchwords: CRIMINAL LAW - Sentence – murder – reckless wounding in company - joint criminal enterprise Legislation Cited: Crimes Act 1900 Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Law Enforcement (Powers and Responsibility) Act 2002 Cases Cited: Muldrock v R [2011] HCA 25 Imbornone v R [2017] NSWCCA 144 Category: Sentence Parties: Regina Wade Martinez Jake Tortell Representation: Counsel: Mr C Patrick SC (Crown) Ms J Hickleton (Martinez) Mr K Chapple SC (Tortell) Solicitors: Solicitor for the Director of Public Prosecutions NSW Danny Lagopodis Lawyers Alexanders Lawyers File Number(s): 2015/2518122015/251805 Publication restriction: No Judgment Introduction 1. HER HONOUR: On 20 March 2017 Wade Martinez and Jake Tortell were indicted on two charges: first that on 14 February 2015 they murdered Gewargis Garmo; second, that on the same day they wounded Gewargis Garmo with intent to cause grievous bodily harm. They each pleaded not guilty to both charges, and a jury trial then took place. On 28 April the jury returned with a verdict of guilty against both men in relation to the murder charge. In relation to the second charge, Mr Martinez was found guilty of the lesser charge of recklessly wounding Mr Garmo in company. Mr Tortell was found not guilty. Accordingly they both come to be sentenced in relation to the murder charge, and Mr Martinez also in relation to the charge of recklessly wounding in company. Background facts 1. The first offence in point of time was the wounding offence, which took place at approximately 10.05 pm on 14 February. This occurred in Dashmere Street, Bossley Park, immediately outside no. 29. The mother of the twins Krystal and Jade McVerry lived at no. 29, together with her partner Rick, and Jade's son, her grandson, of whom she was the primary carer. Wade Martinez was very fond of the little boy, and used to regularly visit no. 29 in order to bring him gifts. Mr Martinez and Mr Tortell were close friends, and often did things together. On this occasion, the two of them had visited no. 29 that afternoon, and had remained there for some time, where Mr Tortell said that he had been drinking a large amount of cognac. 2. That evening the twins Krystal and Jade McVerry were driving with a friend, Cristian Younan, in Mr Younan's Toyota Camry. Krystal was the driver throughout the night, and Mr Younan a passenger. The twins had received a phone call requesting them to bring some McDonalds to their mother's home. While they were parking outside no. 29, by chance the deceased Mr Garmo (who was generally known as "George Garmo"), and his partner Nicole David, were walking past, on the opposite side of the road. They crossed over to talk to the three people inside the car, as they had all been to school together. At that stage Jade McVerry told Mr Garmo to run. She did this because she knew that there had been conflict between him and Mr Martinez, and that the latter was inside the house. Indeed Mr Martinez's black Lexus was in the driveway of no. 29. 3. At about that time Mr Martinez came out of the house into the street, he was holding a knife. A confrontation took place between him and Mr Garmo in which Mr Martinez cut the fingers of Mr Garmo's left hand. Mr Tortell was present for at least some of this time, but on all accounts played no active role in the assault upon Mr Garmo. Immediately after sustaining this injury, Mr Garmo ran off down the street. A little later his partner, Nicole, got into the Camry with the McVerry sisters and they drove off looking for him. Eventually Ms David ascertained that he was in a nearby street, Rimfire Close. They drove there and Mr Garmo got into the back seat of the car. He was bleeding extensively from the wounds to his fingers. 4. This wounding of Mr Garmo constituted the offence of reckless wounding, of which the jury found Mr Martinez guilty and Mr Tortell not guilty. 5. Rimfire Close, the street where Mr Garmo was picked up, has only one entry and exit – both into Dashmere Street. The Camry drove out into that street and turned left. At that time the black Lexus was also in Dashmere Street, travelling in the opposite direction. Mr Martinez, who was driving the Lexus, obviously saw the Camry, for he did a U-turn and proceeded to follow it – first right into Mimosa Road, and then left into Mulligan Street, travelling in a northerly direction. Close to the end of Mulligan Street, the Lexus suddenly overtook the Camry from the left hand side, and proceeded to block it off by stopping in front of it, facing into a driveway on the right hand side of the street. 6. The Camry was forced to stop, and Krystal urged Mr Garmo to get out and run, which he did. I shall describe shortly the route which he took. Immediately afterwards Jade McVerry and Cristian Younan also got out and ran back down Mulligan Street, apparently to check that everything was all right. Both Mr Martinez and Mr Tortell had also got out of the Lexus. Mr Tortell was seen running after Mr Garmo. However very shortly afterwards the Lexus started to roll forward, and Mr Martinez ran back, got into the car and applied the brake. He then proceeded to reverse the car and drive off. This cleared the way for the Camry to drive away, so Krystal did a U-turn and drove back in a southerly direction down Mulligan Street where she collected her sister Jade and Mr Younan. Nicole David was still in the car. It is unnecessary for present purposes to detail where they went after that. They did not return to the immediate area until after the death of Mr Garmo. The significant issue is, what happened to Mr Garmo immediately after he left the Camry, a matter to which I now turn. 7. The route taken by Mr Garmo after he left the car took him through the yards of private homes. Police were able to detect his movements because of the blood trail he left, caused by his earlier hand injuries. He initially ran south in Mulligan Street. The first side street was Lofty Crescent, which was to his right. Mr Garmo turned towards that street and ran through the front and then the rear yard of 1 Lofty Crescent. The evidence indicates that he must then have climbed over the back fence of that property into the rear yard of 8 Garnet Street. Photographs of that yard show that a number of items had been displaced. Garnet Street is parallel to Mulligan Street. Access to Garnet street from the rear yard of no. 8 is gained through a gate which can only be opened from inside, and which was shown to have Mr Garmo's blood on it, indicating that he had opened the gate. His body was found immediately on the street side of this gate, in front of the car belonging to the owner of the property. He had sustained extensive stab injuries, as I shall describe a little later. 8. As to which of the two offenders actually committed the stabbing, there was evidence of significant previous animosity between Mr Martinez and Mr Garmo before this date. Indeed, on all accounts, Mr Garmo had been responsible for at least two and possibly more drive-by shootings at Mr Martinez's family home. I will be saying more about this later. Nevertheless, the evidence at the trial pointed overwhelmingly to the fact that it was Mr Tortell who inflicted the fatal injuries on the deceased. Mr Chapple SC, who appeared for Mr Tortell, sought to argue to the contrary. However for reasons I shall give shortly, there can, in my opinion, be no realistic doubt that it was Mr Tortell who followed Mr Garmo when he left Mulligan Street and inflicted the fatal injuries upon him. 9. Mr Tortell gave evidence at the trial in which he said that after the Lexus stopped in Mulligan Street in front of the Camry, he got out and ran back along Mulligan Street in a southerly direction until he came to Mimosa Street. A little later Mr Martinez came and collected him in the Lexus, and the two of them drove off and left the area. He denied that he had followed Mr Garmo or inflicted the fatal injuries. However his version was, in my opinion, irretrievably refuted by CCTV footage taken from a house on the corner of Mulligan and Gambier Streets. Gambier Street runs in an east-west direction between Mulligan and Garnet Streets. It enters Mulligan Street between Lofty Crescent and Mimosa Street, to the south of Lofty Crescent and the north of Mimosa Street. The Crown tendered a disc (exhibit AAA) showing two vehicles travelling north in Mulligan Street. They both stopped after the second vehicle appeared to move to the right of the first vehicle. Very shortly afterwards, one of the vehicles – clearly the Lexus – reversed and drove south down Mulligan Street, and then right into Gambier Street. In other words, it did not get as far as Mimosa Street. Very significantly so far as Mr Tortell was concerned, there was no sign of any person running down Mulligan Street in the vicinity of Gambier Street. In other words, Mr Tortell must have left that street before the intersection of Gambier Street. 10. Mr Chapple, in submitting that the evidence did not necessarily lead to the conclusion that it was Mr Tortell who inflicted the fatal injuries on Mr Garmo, referred to the fact that the only person seen with a knife that evening was Mr Martinez. That is certainly the case. However there was evidence that a knife was immediately in front of the driver of the Lexus when it was driving along Mulligan Street behind the Camry. Accordingly, it would have been easy for Mr Tortell, as the front seat passenger, to take the knife immediately before he left the car. Certainly Nicole David said that she saw Mr Martinez with a knife after the two vehicles had stopped in Mulligan Street, but her evidence was confused in a number of respects. In some ways this is not surprising: this whole evening was extremely traumatic for her. In any event, it is always possible that Mr Tortell could have had a knife secured within his clothing. Such weapons are not necessarily visible to outsiders. 11. I take into account Mr Chapple's submissions in relation to this matter. They are more extensive than I have thus far described. It is sufficient for present purposes to say that the huge bulk of evidence points in one direction only, namely that it was Mr Tortell who physically inflicted the fatal injuries on Mr Garmo. Amongst many other things, and without going into the details, it would have been virtually impossible for Mr Martinez to have inflicted the injuries, given that he was driving the Lexus at the time. Accordingly, on the whole of the evidence, I have no difficulty whatsoever in finding this matter proved beyond reasonable doubt. 12. As to what did happen to Mr Martinez: as already indicated, the CCTV images from the corner of Mulligan and Gambier Streets show the Lexus driving south in Mulligan Street and then turning right into Gambier Street, which in turn leads to Garnet Street. There, Mr Martinez must have collected Mr Tortell, for the same vehicle was seen shortly afterwards driving back up Gambier Street and turning right into Mulligan Street. The phone records of Mr Tortell and Mr Martinez show them both as then leaving the area, almost certainly travelling together. 13. Not long after the stabbing, the Camry driven by Krystal McVerry, with Nicole David as a passenger, arrived at the scene where Mr Garmo's body had already been found. They had been driving around the area looking for Mr Garmo. Not surprisingly, Ms David was devastated to see that her partner had been killed. 14. Various enquiries were made by the police following the killing of Mr Garmo. It is unnecessary for present purposes to go through them here. Ultimately, on 27 August 2014, both offenders were separately arrested. Each of them declined to answer any questions. They were both also asked, on the day of their arrest, to disclose the name of the passenger and/or driver of the Lexus at the time of the murder. They both declined to do so, which is an offence under s 15(2) of the Law Enforcement (Powers and Responsibility) Act 2002. In relation to each of them this offence is to be dealt with as a back-up offence under s 166 of the Criminal Procedure Act 1986. 15. The Crown has raised a further offence against Mr Martinez to be dealt with under s 166. However this offence is disputed, and I shall return to discuss it a little later. The course of the trial 1. The trial was a relatively lengthy one, occupying nearly six weeks. Some 47 witnesses were called in the Crown case, and many exhibits tendered. In addition to the McVerry twins, Nicole David and Cristian Younan, numerous people who lived in the vicinity of the offences gave evidence of their observations that evening. Highly significant evidence was given by the forensic pathologist, Dr Johan Du Flou, who conducted the post mortem examination of the deceased on 16 February 2015. In addition to the more serious stab wounds, he found numerous non-lethal blunt force injuries on the upper limbs in the form of scratches, grazes and bruises, including injuries to the left hand which could be viewed as defensive injuries. As to the stab wounds, there were three to the back of the deceased's trunk. Two were non-lethal, and had not passed through any vital structures. One of them, however, had passed between two ribs and had then penetrated the lower lobe of the left lung and the aorta. This on its own was a potentially lethal injury. There were five stab wounds to the front of the deceased's chest. By far the most serious of these was a wound, 12 cms in depth, which entered the skin near the left armpit and penetrated the upper lobe of the left lung, then the pericardium surrounding the heart, and finally various parts of the heart itself. This wound alone would have caused a rapid death. 2. Given that no one had witnessed the fatal wounding of Mr Garmo, the Crown case was based on circumstantial evidence. It was also dependent upon the jury finding beyond reasonable doubt that there was a joint criminal enterprise between the two accused to at least inflict grievous bodily harm on the deceased. The jury's verdict indicates that they were satisfied of this matter to the requisite degree. 3. As to the defence case, Mr Martinez did not give evidence. However Ms Hickleton of counsel, who appeared for Mr Martinez, called a friend of his, Nathan Young, who also knew Mr Garmo. Mr Young gave evidence implicating Mr Garmo in the selling of marijuana. He also said that at the end of the previous year, 2014, he had bumped into Mr Garmo who appeared to have a pistol on him. Mr Garmo asked him about Mr Martinez, and then said: "Fuck that cunt, I'll get him." Mr Young later told Mr Martinez about this meeting. Mr Young was extensively cross examined by the Crown Prosecutor, and it was put to him that he was making this up in order to assist his friend, Mr Martinez. A similar submission was made by the Crown Prosecutor during the sentencing proceedings. However, I accept this account as being essentially correct, notwithstanding that Mr Young was confused about some aspects of his evidence. It is consistent with the clear evidence as to the drive-by shootings aimed at Mr Martinez's family home. 4. Mr Tortell, as already indicated, gave evidence in his own case. He attested to his close friendship with Mr Martinez, and said that he often accompanied him when he went to 29 Dashmere Street. They both went there on the afternoon of 14 February 2015. Mr Tortell said that while there he had been drinking both beer and cognac, and that he was intoxicated by the time the relevant events occurred that night. He denied that he had anything to do with the death of Mr Garmo, saying that immediately after the Lexus stopped in Mulligan Street he ran down that street and was collected shortly afterwards by Mr Martinez. However, as already indicated, this version was essentially refuted by the CCTV footage on the corner of Mulligan and Gambier Streets. 5. The jury's deliberations occupied several days. In due course the jury returned with the verdicts described earlier, namely that both men were guilty of the murder of Mr Garmo. In relation to the earlier incident, Mr Martinez was found guilty of the lesser charge of recklessly wounding Mr Garmo, and Mr Tortell was found not guilty. 6. There were two sentencing hearings. At the first, Victim Impact Statements were read on behalf of George Garmo's parents, Harith and Jacqueline Garmo. In addition, the offenders' criminal and/or custodial history was tendered. I will be describing these later when dealing with the offenders' backgrounds. A psychologist's report was tendered in relation to Mr Tortell. 7. Further evidence was tendered in relation to both offenders at the second sentencing hearing, including a report by Dr Stephen Allnutt relating to Mr Martinez. Details were also given in relation to back-up offences to be dealt with under s 166 of the Criminal Procedure Act 1986 in relation to both offenders. I will be discussing these shortly. I now turn to discuss the objective seriousness of the offences in question, starting with the offence of murder. Objective seriousness of the murder offence 1. I shall commence by discussing the seriousness of this offence as it relates to Mr Tortell, who on my finding was the actual perpetrator of the killing. The Crown's sentencing submissions suggested that the following aggravating factors are applicable pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Act"): first, that the offence involved the actual use of a weapon, pursuant to para 21A(2)(c), and secondly that the offence was committed without regard for public safety, pursuant to para 21A(2)(i). However I do not propose to take either of these matters into account as aggravating factors. The use of a weapon is so close to being inherently part of the offence of murder that it would, in my view, be quite inappropriate to treat it as an aggravating factor. As to the second factor, the offence was committed in an isolated space, where no one was present other than the perpetrator and the victim. The swerving of the Lexus in front of the Camry certainly preceded the killing, but was not an inherent part of it. Accordingly there were, in my view, no issues of public safety involved. There were no other aggravating or mitigating factors pursuant to s 21A of the Act relating to the offence as opposed to the offenders. 2. On any view of the matter, the killing was an extremely serious one. A large knife was used to inflict no fewer than eight stab wounds on Mr Garmo. It is clear that the offender intended to kill Mr Garmo, not merely inflict grievous bodily harm. Mr Garmo himself was unarmed, and was attempting to run away from the two offenders. He had done nothing to provoke this violence – at least in relation to Mr Tortell. There was a history between Mr Garmo and Mr Martinez, which I shall mention very shortly. Clearly, as the Crown submitted, Mr Tortell committed this offence in order to assist his friend Mr Martinez, who felt threatened by him. In the offender's favour, it must be said that there was no real premeditation involved: the relevant events that night occurred over a very short period of time. In all the circumstances I find that this offence, as committed by Mr Tortell, falls slightly below the mid line of objective seriousness for murder. 3. There is also a back-up offence in relation to Mr Tortell to be dealt with under ss166 and 167 of the Criminal Procedure Act 1986. This relates to a demand which was made on Mr Tortell on 27 August 2015, the day of his arrest, to disclose the identity of the driver and/or passenger of the Lexus between 10.00pm and 10.20 pm on 14 February 2015. He declined to do so, which is an offence under s 17 of the Law Enforcement (Powers and Responsibilities) Act 2002. He has pleaded guilty to this offence, which carries a maximum penalty of 50 penalty points and/or 12 months imprisonment. Under s 167, the court is to order that the charge be dismissed unless it considers it inappropriate in the circumstances to do so. In this case, the back-up offence is so closely related to the murder of Mr Garmo that it is, in my view, clearly appropriate that it be dismissed. I accordingly make that order in relation to this offence. 4. I turn now to discuss the objective seriousness of the offence so far as it relates to Mr Martinez. On the face of it, his situation is entirely different from that of Mr Tortell. It was Mr Martinez who had the past history of antagonism with Mr Garmo. It has to be said that, at the relevant time, this antagonism was, according to all the evidence, attributable to the actions of Mr Garmo, not those of Mr Martinez. As already mentioned, there had been drive-by shootings aimed at Mr Martinez's family home. On all accounts at least two of these had been committed by Mr Garmo. In addition, Mr Garmo had told Mr Young that he was going to "get" Mr Martinez – a threat which had been passed onto Mr Martinez, thereby giving him good cause to fear Mr Garmo. Ms Hickleton submitted that, although this did not amount to a defence of provocation, it substantially reduced Mr Martinez's culpability. And it does appear that Mr Martinez had been significantly traumatised by these events. Nevertheless, on the day in question, all the evidence indicates that it was Mr Martinez who was chasing Mr Garmo rather than the other way around. It was Mr Martinez who ran out of the house in Dashmere Street and attacked Mr Garmo with his knife, albeit at that stage inflicting only relatively minor injuries. On all the evidence, Mr Garmo did nothing to provoke this attack. It was quite by chance that he and Nicole David happened to be walking down Dashmere Street that evening. I accept that, at that early stage, Mr Martinez might well have been fearful when he saw Mr Garmo immediately outside the house he was in at the time, and this might have led him to take pre-emptive action against Mr Garmo. But this cannot explain Mr Martinez's subsequent behaviour. After the wounding incident, Mr Martinez drove the car which followed the Camry in which Mr Garmo was a passenger, and he deliberately forced it to stop by swerving his car in front of it in Mulligan Street. 5. In all the circumstances, there is no doubt that it must have been at Mr Martinez's instigation that Mr Tortell inflicted the fatal injuries on Mr Garmo. Mr Tortell, according to the evidence, had no background of animosity with Mr Garmo, and therefore no reason to physically attack and kill him except at the request of his friend Mr Martinez. Indeed, by way of a side issue, this provides further support for the proposition that it was Mr Tortell who physically inflicted the fatal injuries. Had they been inflicted by Mr Martinez, as submitted by Mr Chappell, there would have been little or no basis for the jury to make an affirmative finding that they had been inflicted as a result of a joint criminal enterprise between the two accused men to at least seriously injure Mr Garmo. Mr Tortell's involvement would have been at best peripheral. 6. Accordingly it was Mr Martinez whose antipathy to Mr Garmo led to this attack on Mr Garmo. Mr Tortell was, in effect, carrying out his friend's wishes when he inflicted the fatal injuries. Nevertheless, as Ms Hickleton pointed out, there is no basis upon which I could make a finding beyond reasonable doubt that Mr Martinez directed his friend to inflict the very serious injuries which were in fact sustained by Mr Garmo. In addition, as Dr Allnutt's report makes clear, Mr Martinez was severely traumatised as a result of Mr Garmo's previous actions. Indeed, the doctor considered that at the time of the offence he was suffering from a diagnosable psychiatric condition, namely a trauma-related disorder likely a post-traumatic stress disorder. I take into account the Crown Prosecutor's submissions relating to Dr Allnutt's report. Nevertheless, I consider that this operates as a significant mitigating factor on sentence. 7. In the end result, I find that in Mr Martinez's case this offence falls below the mid-line of objective seriousness for the offence of murder, although not substantially so. It is slightly below that of Mr Tortell. 8. At this stage it is appropriate to briefly say something about the charge of reckless wounding in company, of which Mr Martinez was convicted. This related to the stabbing of Mr Garmo's hand outside 29 Dashmere Street, shortly before the killing. Charge of reckless wounding in company 1. This offence carries a maximum sentence of ten years imprisonment with a standard non-parole period of four years. Given that the jury found Mr Martinez not guilty of the charge of wounding with intent to cause grievous bodily harm, they cannot have been satisfied that he intended to seriously injure Mr Garmo when he inflicted these injuries. Nevertheless, it was a nasty attack, involving a large knife – almost certainly the same knife that was later used by Mr Tortell to inflict the fatal injuries. As already indicated, on the evening in question Mr Garmo did nothing to provoke this attack. It was pure chance that he and his partner happened to be walking past the Dashmere Street house. On the other hand, this was a completely spontaneous offence, committed in a situation where I accept that Mr Martinez had reason to fear Mr Garmo. In addition, this offence preceding the killing of Mr Garmo by only a very few minutes. Indeed, it was this which started the chain of events leading to the killing. Accordingly, in my view, it would be appropriate to impose a sentence which is to a very large extent concurrent with the murder sentence. I shall return to this a little later. 2. There are also two back-up offences in relation to Mr Martinez. One of them is identical to that charged against Mr Tortell, namely an offence committed on the date of his arrest for the murder charge, 27 August 2015, of failing to disclose the identity of the driver and passenger of the Lexus between 10.00pm and 10.30pm on 14 February 2015. He has pleaded guilty to that offence, and, as in Mr Tortell's case, I consider it appropriate to dismiss the charge, which I hereby do. 3. The second back-up charge relates to an offence under s 315A of the Crimes Act 1900 of threatening to cause an injury or detriment to a person, intending to influence that person not to bring material information about an indictable offence to the attention of the police. This offence carries a maximum sentence of imprisonment for seven years. He has pleaded not guilty to this offence. It arises out of a chance encounter Mr Martinez had with Jade McVerry on 21 May 2015 when they both happened to be at a particular shopping centre at the same time. She said in evidence that it was essentially a friendly meeting, and that Mr Martinez then accompanied her to her grandmother's car in order to see young Levi, who was in the car. On the way he said: "Make sure that you keep your mouth shut. I'm watching." She reported the matter to the police on 1 June 2015. Ms Hickleton submitted that this simply did not happen. She pointed out that there was no visible sign of aggression in the CCTV footage which shows much of this meeting. However Jade McVerry herself described it as a friendly encounter, apart from this warning. There is no evidence to contradict her sworn testimony about this matter. And if it did not occur, why did she report it to the police 11 days later? In all the circumstance, I have no difficulty in finding that this did occur, essentially as described by Ms McVerry. However there is a real issue as to whether this warning constituted a "threat to cause an injury or detriment to someone", and also as to whether Mr Martinez's intention at the time was to influence Ms McVerry not to provide information to the police, both being matters which the Crown must prove beyond reasonable doubt. In all the circumstance, without going into the details of my reasoning, I am unable to find these matters proved to the requisite degree. Accordingly I formally dismiss this charge. 4. I now turn to say something about the offenders' backgrounds, commencing with Mr Martinez. The offenders' backgrounds 1. Most of the information relating to Mr Martinez's background derives from the report of the forensic psychiatrist Dr Stephen Allnutt dated 31 July 2017 which was tendered on sentence. Dr Allnutt interviewed Mr Martinez by audiovisual link on 10 July 2017. 2. Mr Martinez is now 24 years old, having been born on 29 October 1993. He was 21 when he committed these offences. On all accounts he had a difficult childhood. He was born with a leaking lung, which has required surgery on several occasions. He was the youngest in a family of five. His parents were both alcoholics who separated when he was 15, and his youth was clearly a disrupted one. He was diagnosed by his family doctor as having attention deficit hyperactivity disorder. In addition, there is a family history of depression, which means that he is genetically predisposed to depression. Since the age of 16 he has abused multiple substances, including cocaine, amphetamines, methamphetamines, heroin and alcohol. Dr Allnutt considered that at the time of these offences he was suffering from a substance use disorder. He left school early, and then worked as a labourer, mainly in concreting and scaffolding. Starting at the age of 16 he committed a number of offences, but all of them were clearly of a relatively minor nature, for none of them led to a custodial sentence being imposed. 3. In many ways, Dr Allnutt's most significant finding related to Mr Martinez's anxiety levels. These were very high at the time of the offence, and directly arose from the prior actions of the deceased, particularly the drive-by shootings at Mr Martinez's home, which caused Mr Martinez to continually fear for his own safety. He was suffering from sleep disturbance, nightmares, hyper-vigilance, irritability, social withdrawal, loss of appetite and weight loss. As already indicated, Dr Allnutt concluded that this constellation of symptoms was consistent with a trauma-related condition such as post-traumatic stress disorder. 4. Mr Martinez expressed remorse for the killing, and Dr Allnutt concluded that if he continues to abstain from substances and pursues psychiatric treatment, his prospects for rehabilitation are positive. I propose to take this into account as a mitigating factor under para 21A(3)(h) of the Act. However, in the light of the Court of Criminal Appeal's judgment in Imbornone v R [2017] NSWCCA 144, not a great deal of weight can be attached to it, being based on Mr Martinez's untested assertions to a third party. 5. I turn now to discuss Mr Tortell's background. He was born on 25 March 1996, and was thus 18 at the time of this offence. He is now 21 years old. Virtually all the information as to his background derives from a report of the psychologist, Julie Dombrowski, who had a lengthy interview with Mr Tortell on 26 June 2017. His parents separated when he was an infant, and he was brought up by his mother together with his two sisters. He suffered no neglect or abuse as a child, but apparently felt isolated as the only male in an all-female household. He attended school up to year 12, and finished with very poor grades. While at school he worked part time in a restaurant, and after leaving school he worked full time as a factory hand. As to drug use, he commenced taking cannabis at the age of 11, and between the ages of 14 and 17 was taking it on a daily basis. He then stopped, and replaced it with tobacco. He started consuming alcohol at the age of 13, but denied any excessive alcohol consumption. His responses to questions revealed thought disturbance and ideas of persecution as a primary concern, probably arising from his history of cannabis use, together with the stress of his present circumstances. However his psychometric testing provided no evidence of a violent disposition, and suggested that he is a stable young man with normal intellectual resources, although his overall level of functioning was assessed as falling in the low average range. Highly favourable references were tendered from the principal of Bossley Park High School, which Mr Tortell attended for six years, and from his employer after he left school. 6. The relevant mitigating factors in his case are that he has no record of previous convictions and was accordingly a person of good character, pursuant to s 21A(3)(f) and (g) of the Act. The appropriate sentences 1. I turn now to discuss the appropriate sentence in each case, commencing with the offence of murder. The maximum penalty for murder is life imprisonment, with a standard non-parole period of 20 years. Since the High Court judgment in Muldrock v R [2011] HCA 25 it has been accepted that the standard non-parole period operates as a guide post rather than a starting point, as had previously been considered. 2. In the case of both offenders my finding is, as already indicated, that the offence falls a little below the mid line of objective seriousness for murder. In addition, both are very young men. One of them has no record of previous convictions, and the other convictions only for relatively minor offences. There are no aggravating factors relating to either of them personally. Accordingly, the sentences I propose to impose will involve non-parole periods below the standard non-parole period for murder. 3. As already indicated, I consider that Mr Martinez's objective culpability is very slightly below that of Mr Tortell. Both of them have subjective factors in their favour. Once I have slightly accumulated Mr Martinez's non-parole period for the offence of reckless wounding in company, the end result will be that they will both be sentenced to serve the same term of imprisonment. 4. I should say, for the sake of the record, that I have taken into account the principal purposes of sentencing, namely the protection of society, the deterrence of the offenders and others, retribution and rehabilitation. They operate as guideposts to the appropriate sentences, and not infrequently point in different directions. 5. Counsel for both offenders have submitted that, in the light of the psychiatric and psychologist's reports, the offenders would benefit from additional parole periods in order to assist their rehabilitation, and that this constitutes special circumstances which justify a departure from the statutory ratio between the head sentence and the non-parole period. I propose to accede to this submission in each case. However, given that the overall sentences which both offenders will be serving are such that there will in any event be lengthy parole periods, the variations will be minor only. 6. I am required to warn each of the offenders, which I now do, of the existence of the Crimes (High Risk Offenders) Act 2006, and the fact that that Act applies to the offences of which each offender has been convicted, namely the murder offence, and for which he is about to be sentenced. At some future point of time an application may be made that, notwithstanding the completion of his sentence, he nevertheless ought to be detained in ongoing custody or else ought to be the subject of an extended supervision order, impacting on his liberty. 7. An extremely moving victim impact statement was read on behalf of the parents of Mr Garmo. On behalf of the Court I would like to convey my sincere sympathy to his family members. I take that statement into account in the manner set out in the legislation. 8. Both offenders have been in custody since the date of their arrest, 27 August 2015, and their sentences are therefore to commence on that date. 9. Wade Martinez, for the offence of recklessly wounding in company, I sentence you to imprisonment for a period of one year commencing on 27 August 2015 and expiring on 26 August 2016. For the murder of Gewargis Garmo, I sentence you to imprisonment consisting of a non-parole period of 15 years and 9 months commencing on 27 November 2015 and expiring on 26 August 2031, with a balance of term of 6 years commencing on 27 August 2031 and expiring on 26 August 2037. The total term of imprisonment is therefore 22 years. The earliest date on which you will be eligible for release on parole is 26 August 2031. 10. Jake Tortell, for the murder of Gewargis Garmo, I sentence you to imprisonment consisting of a non-parole period of 16 years, commencing on 27 August 2015 and expiring on 26 August 2031, with a balance of term of 6 years, commencing on 27 August 2031 and expiring on 26 August 2037. The total term of imprisonment is therefore 22 years. The earliest date on which you will be eligible for release on parole is 26 August 2031. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 October 2020